The 9th Circuit Court of Appeals in a decision issued yesterday upheld a federal district court settlement limiting the number of loggerhead and critically endangered leatherback sea turtles that can be caught by Hawai`i’s longline swordfish fishery. The settlement responded to a lawsuit brought by Turtle Island Restoration Network, Center for Biological Diversity and KAHEA challenging the National Marine Fisheries Service’s decision in 2009 to nearly triple the number of sea turtles the fishery could catch. The settlement rolled back the limit to prior levels. The decision rejected an appeal by the fishing industry, which sought to invalidate the agreement.

Earthjustice attorney Paul Achitoff said, “We’re glad the federal appeals court upheld the temporary sea turtle protections we won with the consent decree, but the high level of sea turtle harm the National Marine Fisheries Service is now proposing may well be worse than the previous rule. NMFS seems to be raising the limits to accommodate the longliners rather than to ensure that the species aren’t driven to extinction, as the law requires.”

“Hawai`i's public-trust ocean resources have to be better managed for our collective best interest, and not just the interests of this commercial fishery,” said KAHEA Board President Kealoha Pisciotta. “The 9th Circuit decision is a victory not just for the turtles, but for Hawai`i’s people who rely on a healthy, functioning ocean ecosystem. We can’t rest as long as federal fishery managers continue to allow unacceptable levels of harm to the few sea turtles remaining in the ocean.”

Turtle Island Restoration Network, Center for Biological Diversity and KAHEA sued the National Marine Fisheries Service over its decision to increase, from 17 to 46, the number of loggerhead sea turtles the fishery could catch in a year before being required to shut down. At the same time, NMFS was considering increasing protections for loggerheads under the Endangered Species Act by upgrading it from “threatened” to “endangered.” The plaintiffs and NMFS agreed to settle the case by rolling back the number of loggerheads allowed to be caught to 17 while the agency decided whether to uplist the species and prepared a new analysis of the effects of increasing the turtle catch limit on the species’ survival and eventual recovery. Judge David Ezra approved the settlement as a consent decree.

In its appeal, the fishing industry argued that the court lacked the power to issue the consent decree. The appeals court rejected this argument, noting that the consent decree simply offered the sea turtles some protection by reinstating the previous catch limit, while allowing the agency an opportunity to reconsider its position in light of the latest scientific information.

“Our settlement ensures that sea turtles can swim more freely and safely in Hawai`i’s waters,” said Miyoko Sakashita, oceans director at the Center for Biological Diversity. “If loggerheads and leatherbacks are going to survive, we need to stop killing them in our fisheries.”

While the appeal was pending, NMFS in September 2011 changed the loggerheads’ designation to “endangered.” In January of this year, the agency also issued a new biological opinion as contemplated by the consent decree. That document proposes to increase the number of endangered loggerhead sea turtles the longliners can catch from 17 to 34. It also increases the limit for catching endangered leatherback sea turtles from 16 to 26. Notably, in 2011 the fishery was forced to close after it caught its limit of leatherbacks.

Teri Shore of the Turtle Island Restoration Network said, “Sea turtles are becoming more endangered, not less, so each one we lose in the longline fishery pushes them closer to extinction. Allowing more sea turtles to be harmed in this high-bycatch fishery makes a joke out of so-called sustainable seafood.”

Swordfish longline vessels trail up to 60 miles of fishing line suspended in the water with floats, with as many as 1,000 baited hooks deployed at regular intervals. Sea turtles become hooked while trying to take bait or become entangled while swimming through the nearly invisible lines. These encounters can drown the turtles or leave them with serious injuries. Sea birds such as albatross dive for the bait and become hooked; marine mammals, including endangered humpback whales and false killer whales, also sometimes become hooked when they swim through the floating lines.

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